Garvin v. City of Wilmington

Superior Court of Delaware

May 8, 2018

NISHEEA GARVIN, Plaintiff,v.CITY OF WILMINGTON, Defendant.

ORDER

William C. Carpenter, Jr. Judge

On this
8th day of May, 2018, upon consideration of City of
Wilmington's ("Defendant" or the
"City") Motion to Dismiss, and Nisheea Garvin's
("Plaintiff) Response on behalf of her minor daughter
Donyhla Garvin-Turner ("Donyhla"), it appears to
the Court that:

1. On
or about July 29, 2015, Donyhla was a visitor at William Judy
Johnson Memorial Park (the "Park") located in
Wilmington, Delaware.

2.
Plaintiff claims while visiting the Park she was injured when
she was struck by a large metal portion of the fencing that
encompassed the Park (the "Accident").

3.
Plaintiff filed a Complaint on July 13, 2017, alleging that
the Accident caused a fracture of Donyhla's left leg with
residual disfigurement, which could be permanent. In addition
to the physical injuries, Donyhla has suffered emotional
injuries from the permanent nature of her injuries.

4.
Plaintiff filed suit against the City of Wilmington,
Wilmington Parks Network, Friends of Wilmington Parks, Inc.,
and The West End Neighborhood House Inc. (jointly "the
Defendants"). There appears to be no dispute that the
City of Wilmington is the owner and operator of the Park.

5.
Plaintiff alleges all Defendants "by and through their
agents, servants, and employees, were negligent, grossly
negligent, wanton, and/or intentional in that they:

(a) Failed to adequately inspect the Premises for dangerous
conditions existing on the Premises representing a hazard to
invitees such as plaintiff; (b) Failed to adequately repair
and/or remedy dangerous conditions existing on the Premises
representing a hazard to invitees such as plaintiff; (c)
Failed to adequately warn invitees such as plaintiff of the
existence of dangerous conditions existing on the Premises
representing a hazard to invitees such as plaintiff; and (d)
Allowed a condition which was hazardous and/or dangerous to
invitees such as plaintiff to exist on the Premises; and (e)
Were otherwise negligent, grossly negligent, and/or committed
acts which were wanton and/or intentional, as will be
determined in discovery.[1]

6.
Plaintiff seeks "damages and compensation for medical
expenses, future medical expenses, diminution of future
income, loss of future wages, loss and diminution of future
earning capacity, emotional distress, permanency, pain and
suffering, loss of services, loss of companionship, the costs
of this action, pre-judgment interest, post judgment interest
and any other relief which this Court may deem proper"
as well as punitive damages.[2]

7. In
response to Plaintiffs Complaint, Defendant, the City of
Wilmington, filed on August 24, 2017, the present motion to
dismiss under Rule 12(b)(6) for failure to state a claim upon
which relief can be granted. On February 28, 2018, the
parties stipulated that all claims against Defendants,
Friends of Wilmington Parks, Inc. and The West End
Neighborhood House, Inc., were dismissed without prejudice.

8.
"A motion to dismiss for failure to state a claim upon
which relief can be granted made pursuant to Superior Court
Rule 12(b)(6) will not be granted if the plaintiff may
recover under any reasonably conceivable set of circumstances
susceptible of proof under the complaint."[3] All well-pled
allegations in the complaint must be accepted as true,
[4] and
every reasonable factual inference will be drawn in favor of
the plaintiff.[5]

9.
Defendant urges the Court to grant its Motion to Dismiss
because the City of Wilmington is immune from tort suits
pursuant to the County and Municipal Torts Claims Act
("the Act"). The Act states "[e]xcept as
otherwise expressly provided by statute, all governmental
entities and their employees shall be immune from suit on any
and all tort claims seeking recovery of
damages."[6]There are however three exceptions to
immunity under the Act.[7] They are:

(1) In its ownership, maintenance or use of any motor
vehicle, special mobile equipment, trailer, aircraft or other
machinery or equipment, whether mobile or stationary.

(2) In the construction, operation or maintenance of any
public building or the appurtenances thereto, except as to
historic sites or buildings, structures, facilities or
equipment designed for use primarily by the ...

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